Pennsylvania Supreme Court Rules Provisional Ballots Allowed If Mail-In Vote Rejected Due to Naked Ballot

Director of the Board of Elections Tyler Burns holds a test ballot during a mail-in ballot processing demonstration at the Board of Elections office in Doylestown, Pa., on Sep. 30, 2024. Hannah Beier/Getty Images

The Pennsylvania Supreme Court ruled on Oct. 23 that voters whose mail-in ballots are rejected because they are delivered without the ballot being enclosed in the required secondary secrecy envelope, known as a “naked ballot,” must be allowed to vote by provisional ballot on Election Day.

The 4–3 decision upholds a ruling by a lower court, which granted voters this method of redressing a “naked” mail-in ballot in Pennsylvania, a critical swing state.

The state high court’s ruling allows voters whose mail-in ballots are not counted during the canvassing process to be eligible to have a provisional vote counted.

Justice Christine Donohue wrote the majority opinion.

“Absent any other disqualifying irregularities, the provisional ballots were to be counted if there were no other ballots attributable to the Electors,” Donohue wrote in the opinion.

Justice Sallie Mundy, in her dissenting opinion, said the law governing mail-in voting is “not ambiguous,” and that the majority exceeded the bounds of statutory interpretation and supplanted the power of the state Legislature to regulate elections.

“No-excuse, universal mail-in voting is a voting method prescribed by the Legislature,” Mundy wrote in her dissent.

The Republican Party has said that it wants voters and administrators to follow state voting laws, and that changes should be amended through the Legislature and not the courts. It also argued that the decision so close to an election violate the rule to avoid late changes to election rules.

The case was brought by two voters in Butler County whose 2024 primary election mail-in ballots were flagged during initial screening for potentially lacking secrecy envelopes. Both voters were advised by the Department of State’s automated systems that they could request a new ballot before the deadline or vote provisionally in person on Election Day. But on election day, the Butler County Board of Elections rejected their provisional ballots, prompting the legal battle.

The Republican National Committee (RNC) and the Republican Party of Pennsylvania argued in court filings that once a mail-in ballot is submitted on time, even if defective, a voter cannot cast a provisional ballot.

A trial court determined that the provisional ballots were correctly rejected but an appeals court overturned that ruling, deciding that they should have been counted. Republicans appealed the decision to Pennsylvania’s supreme court.

The state supreme court found that under the Pennsylvania Election Code, provisional ballots should be counted when a voter’s initial mail-in ballot is declared void, such as when a secrecy envelope is absent from the ballot. The court emphasized that a voided mail-in ballot does not disqualify the voter’s provisional ballot because it is not considered a validly “cast” ballot.

This decision marks a legal loss for the RNC and the Pennsylvania Republican Party.

According to the Pennsylvania Department of State, more than 1.1 million mail-in ballots have already been returned in Pennsylvania with two weeks remaining until Election Day. Hundreds of thousands of additional mail-in ballots have been requested.